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Crawfordsville Town Country Home Center, Inc. v. Cordova

Court of Appeals of Indiana

January 24, 2019

Crawfordsville Town & Country Home Center, Inc., Appellant-Defendant,
v.
Odilon Elias Cordova, Jamie Busse, and Do It Best Corp, Appellees-Plaintiffs/Defendant.

          APPEAL FROM THE ALLEN SUPERIOR COURT THE HONORABLE DAVID J. AVERY, JUDGE TRIAL COURT CAUSE NO. 02D09-1512-CT-543

          ATTORNEYS FOR APPELLANT CAREN L. POLLACK ZACHARY J. STOCK INDIANAPOLIS, INDIANA

          ATTORNEY FOR APPELLEES TIMOTHY F. DEVEREUX INDIANAPOLIS, INDIANA

          TAVITAS, JUDGE.

         Case Summary

         [¶1] Crawfordsville Town & Country Home Center, Inc. ("Town & Country") appeals the trial court's denial of its motion for summary judgment in proceedings brought by Odilon Elias Cordova ("Cordova") and Jamie Busse ("Busse"). We reverse and remand.

         Issue

         [¶2] Town & Country raises two issues. We find the following issue dispositive: Whether the trial court properly denied Town & Country's motion for summary judgment based on lack of duty.

         Facts

         [¶3] The parties' designated evidence demonstrates that, in August 2014, the owners of a Mexican restaurant in Crawfordsville hired Rogelio Barcelata to paint the rear exterior wall of the restaurant. Barcelata asked Cordova and Rutelio Gonzales to assist and split the payment for the work. To remove the old paint, the men decided to rent a pressure washer and an aerial lift. Barcelata and Cordova[1] went to Town & Country, where Corey Perigo, the rental department manager, assisted them.

         [¶4] Barcelata, Gonzales, and Cordova speak limited English. Barcelata and Cordova testified in depositions that they cannot read English. Perigo testified in a deposition that Barcelata spoke fluent English and that he did not know if the other men spoke English. Cordova is married to Busse, and they communicate in English.

         [¶5] Perigo rented the equipment to Barcelata. According to Perigo, he explained the operation of the aerial lift to Barcelata. According to Cordova, however, Perigo explained how to use the aerial lift to Cordova, who spoke more English than Barcelata. Perigo also showed Cordova where the operator's manual was located. The operator's manual and the warning labels on the aerial lift are all written in English. Cordova did not ask for the instructions or safety information to be provided in Spanish. Perigo spent fifteen to twenty minutes giving an operation and safety orientation. Perigo conceded, however, most of that time was spent on operation of the aerial lift, not safety. Perigo did not review the operator's manual with Cordova or Barcelata.

         [¶6] The aerial lift had multiple warning labels with diagrams placed on the aerial lift by the manufacturer that directed users not to use the lift within ten feet of a high-voltage line. See Figure 1 (Appellant's App. Vol. II p. 135); Figure 2 (Appellant's App. Vol. II p. 136). Perigo testified in his deposition that he explained the electrocution warning sticker and that he said "to stay away from the power lines at least 10 feet." Appellant's App. Vol. III p. 151. Barcelata, however, testified that Perigo did not point out the warning labels.

         (Image Omitted)

         [¶7] The operator's manual further directed operators to avoid power lines. See Figure 3 (Appellant's App. Vol. II p. 239). The operator's manual provided: "Inexperienced users should receive instruction by a qualified instructor before attempting to operate or maintain the aerial work platform." Appellant's App. Vol. II p. 237. Perigo is not "certified" to "provide training or instruction" on the aerial lift. Appellant's App. Vol. III p. 151.

         [¶8] The men then took the aerial lift to the jobsite. After they arrived at the jobsite, however, the men had problems operating the aerial lift. Cordova called Perigo, who came to the jobsite and corrected the problem. There is a dispute as to whether the aerial lift was in the parking lot or in position next to the building when Perigo arrived. Perigo testified that, when he arrived, the equipment was parked in the parking lot away from the restaurant. According to Perigo, the men did not explain what they were doing with the aerial lift, and they told Perigo that they needed a "heavier duty pressure washer." Id. at 152.

         [¶9] Cordova, however, stated that, when he and Barcelata arrived at the site with the aerial lift, they immediately placed the aerial lift next to the restaurant's back wall and leveled it. Barcelata also testified that the aerial lift had been placed "where we were going to work" and that Cordova had leveled it before discovering that it would not work; the men placed the aerial lift between the back wall of the building and power lines that were a few feet away. Id. At 159.

         (Image Omitted)

         [¶10] According to Cordova and Barcelata, the aerial lift was already in position when Perigo arrived to fix it. Barcelata testified that he assumed Perigo "would have said something" if the aerial lift could not be operated in its location when Perigo repaired the aerial lift and saw its position. Id. at 167. Cordova testified that Perigo saw their small pressure washer and told Cordova that it was too small for the job. Perigo recommended that the men use a more powerful pressure washer, and the men followed Perigo back to Town & Country to rent a different pressure washer.

         [¶11] Barcelata was aware that "nobody should get close to electric cable[s]," but he admitted he thought they had enough room to do the job without touching the power lines. Id. at 161. Barcelata understood that they needed to stay away from the power lines. Barcelata was not concerned about using water near the power lines because they "were spraying the wall, not the lines." Appellant's App. Vol. II p. 81. Cordova testified that he knew the power lines were "bad" and that they tried to stay away from the lines. Appellant's App. Vol. III p. 178. Cordova also testified, ...


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